248 F. 823 | E.D. Va. | 1918
(after stating the facts as above). From the above statement of the case, it will readily be observed that the “parties are utterly at variance as to how the accident occurred, and where the collision took place. Libelant insists that the launch in which decedents lost their lives approached -from the West Norfolk side of the channel, and was in collision with the barge on its port side; and the respondent, that the launch approached on its starboard, the Norfolk, or eastern, side of the channel. Respondent asserts that the collision occurred at a point about opposite Merchandise Pier No. 2, at Lambert’s Point; whereas, libelant says it took place something higher up the river, between that point and spar buoys 32 and 32a. These differences will be discussed later, and the court will first consider the charges of negligence against respondent as to the undue length of the tow, and especially the hawser, the inefficiency of the navigators of the tug and tow, and the failure to have efficient lookouts upon the tug and barge.
The suggestion is made that the federal statute has no application, because the tow was not intended to go to sea. This contention is more technical than real, as the tow was en route from Port Norfolk to Cape Charles, having to cross Chesapeake Bay, over 20 miles wide,
Considering the navigation of the barge, on the occasion in question, we have only the. testimony of one person from her, namely, the head fireman, who was in charge of her navigation, her master being absent. Lie seems to have been aided by an assistant fireman, who was in the engine room, and a deck hand whose whereabouts in the barge he did not know. The barge was equipped with a bridge, running from one side to the other, and sufficiently high to permit the passage of freight cars beneath it. At each end of the bridge was a house, or quarters for the accommodation of the crew, and in the middle was the pilot house, from which the operation of the barge was directed. This acting captain was an unlicensed man, who said he had never qualified for license to run or steer boats, “or anything of that sort.” He was acting as lookout, as well as master, and admits that he was the
Third. This brings us to the question of whether the collision occurred as contended for by the libelants, or as insisted upon by the respondents; and it may be said I hat it is more or less difficult to determine the exact manner and place of the happening of the accident, because the actors therein on one. side are no longer living to give their account of what occurred. The four persons on the launch were all suddenly drowned, and the craft in which they were traveling sunk and destroyed, and never afterwards found.
The libelants were enabled to call a disinterested witness, who was near the scene of the accident, crossing the harbor, and who made a report of the occurrence. He was passing from West Norfolk to Rambert’s Point in a rowboat, and claims to have seen and observed the accident. He describes it as having happened on the western side of the channel, higher up the river than as contended for by respondent, and the tug as having gone to the eastward of the buoy at the entrance to the West Norfolk cut channel, and the barge to the westward thereof.
Respondent insists that it hss broken down the testimony of this witness, and that his evidence cannot be relied upon. In this view the court does not concur, save as respects the location of the accident and the going of the1 tug to the eastward of the buoy at the mouth of
The court is inclined to believe, from the whole testimony, that the collision took place nearer the point claimed by the respondent than that by the libelant, namely, off the merchandise piers at Lambert's Point, and after the tug made the last-named departure. The first witness called by the respondent, C. T. Powell, the master of the C. & O. car float, when giving his direct statement, comes pretty near placing the launch where the libelant’s witness Jones says it was; that is, to the westward of the car float. It is true, on examination by counsel, he subsequently placed the launch to the eastward of the barge, though his last statement is greatly weakened by what he first. stated; and the testimony of the master of the tug Clark, also called by the respondent, and who was also in the immediate vicinity of where the launch would have been, if to the eastward of the barge, as claimed by the respondent, saw nothing -whatever of it. The testimony of these two disinterested witnesses corroborates that of libel-ant’s witness Jones as to the location of the launch to the westward side of the barge. In the view of the court, in the result it is not very material whether the collision occurred at the exact place or precisely as claimed by either party; and it is inclined to think that the preponderance of the testimony is to the effect that the launch was to the starboard side of the car float at the time of the collision.
Assuming this to be the fact, the court sees no reason why the collision should have occurred, had the tug and tow been navigating prudently, as well respecting the length of the tow and hawser, and the presence of a proper lookout, as in the matter of the speed with which it was proceeding.
Fourth. Considering just how the collision occurred, after the launch passed the tug at a distance of some 100 feet away, and subsequently came into collision with the starboard end or side of the barge, as described by respondent’s witnesses, especially by the master of the
“And after she passed the boat, and hauled out for the stern of the boat, like she was going across the stern between the barge and the tugboat, and it looked to me like she had got so near the stem of the boat that she seen the cable, and she tried to haul her back, and she did not have time to haul her back, and she went bow on to the barge. Q. Which side of the barge did she hit? A. The starboard side, the corner.”
The acting master of the barge, Hudgins, thus described it:
“A. The launch come back to the Delmar, and changed her course apparently to cross our hawser between the barge and the tug, and I reached for the whistle, which was right over my head, and before I got hold of it the launch had changed her course again, and showed mo her green light.. Q. AVhat did you do then? A. I took my hand-(town, and immediately the launch switched her course again, and showed me her red light, and headed across the hawser, and I got hold of the cord and blew the danger signal. Q. AVhat did the launch do? A. She did not do anything, unless s'te hit herself behind the barge. Q. Do yoii know where she was hit? A. Between the end and the starboard quarter of the barge.”
The testimony is undisputed in this case that the navigator and owner of the launch was an experienced water man, had spent years in the shipyard business and handling launches, and to suppose that he would have been guilty of such folly as this testimony shows it to have been, with friends aboard, is most improbable; in other words, that he came up within 100 feet of the tug, and with the car float following behind, with its lights burning, saluted the tug as he.passed, and immediately proceeded to navigate around behind it, and between it and its tow, and into the hawser of the tow, first showing his red and then his green light. Such action on his part meant sudden destruction; when he could, if the situation was as claimed by these witnesses, have simply starboaided his helm, and in an instant gone away from, and not into, either the car float or the hawser. It seems to the court entirely manifest that, if the collision did occur from the starboard side, as claimed, it was at a time when the tug had made its departure at the curve in the channel, and in the immediate .vicinity of where the collision occurred, in a northeasterly direction, and that at the moment the car float, some 200 yards away in the dark, had not changed its course to' folloAV in the wake of the tug, but was moving apparently in a northwesterly directio i, and the launch was caught in the angle, as the car float, upon the long hawser, began to be affected by the pulling of the tug, and curved into and upon the launch, striking it with its starboard bow.
The respondent’s witness Moore gives strong support to this contention, as follows:
“Q. Had you been up long enough, to see whether the barge was following right behind the tug? A. It was following as near behind the tug as she could, coming round.” -
And later on:
“Q. AVas the barge kind of turning round, or was it straight behind the tug? A. It was straightening behind the tug, but not directly straight. Q.*831 Was it a kind of going over to port a little? A. Going from the launch over to the left.”
With a view of showing how this accident happened, the court has gone somewhat into detail, conscious of the fact that it is difficult to determine with certainty, especially where the actors on one side are all dead. The conclusion reached is that the real cause was the manner in which the tug and tow were being navigated at the time. The tow was confessedly of undue length; on an improper hawser; both tug and barge without proper lookouts, and proceeding at an unsafe rate of speed, at night, along a difficult course, in plain violation of the laws, statutes, rules, and regulations prescribed for their movement, and contrary to what good seamanship would have suggested; and as a consequence the gasoline launch, on which the libelant’s and petitioners’ intestates were lawfully traveling, was caught, run down, and all on board lost. The negligence on the part of the respondent was sufficient within itself to, and does, account for the accident, and those liable therefor will not he permitted to cast the responsibility upon others, or have them share their burden, by suggesting possible faults of those whose voices are still, when their own acts of omission and commission fully account for the disaster. The Pennsylvania, 19 Wall. 125, 136, 22 L. Ed. 148; The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211, 37 L. Ed. 84; The Martello, 153 U. S. 64, 74, 14 Sup. Ct. 723, 38 L. Ed. 637; Lie v. San Francisco, etc., Steamboat Co., 243 U. S. 291, 298, 37 Sup. Ct. 270, 61 L. Ed. 726; The Georgetown (D. C.) 135 Fed. 854, 857; Baltimore Steam Packet Co. v. Coastwise Transportation Co. (D. C.) 139 Fed. 777, 779.
Fdward Bishop was 29 years old, and left a widow and three small children. He was a wagoner, earning $2.50 a day, and worked steadily. The two young women were 16 years old; one of them worked as a nurse, and earned $2 a week; the other was not at work.
The court’s conchision is that an award of $7,500 should be made